Grutter v. Bollinger 539 U.S. 306 (2003) Questions

. Justice Rehnquist wrote the opinion for the Court in Gratz v. Bollinger. What was constitutionally impermissible about the University of Michigan’s undergraduate admissions system? Do you agree with the Court’s assessment?

2. How did the University of Michigan’s Law School admissions program differ in the way that it sought to attract minorities?

3. Who is Barbara Grutter? How did the University of Michigan practically seek to achieve a critical mass of minorities? What are the benefits have having a critical mass of minorities? What did the University of Michigan predict would happen without affirmative action?

4. According to Justice O’Connor’s Opinion for the Court, what is problematic about finding a precedent to follow in this case? What is the precedent that most people have followed? What does that precedent accept and reject? What will this Court, according to Justice O’Connor, follow?

5. What standard of Equal Protection analysis does Justice Sandra Day O’Connor apply to this case? Why?

6. What precedent would have suggested that the use of race for diversity in public education would have been prohibited? Why did Sandra Day O’Connor explain that this precedent did not apply?

7. According to Justice O’Connor, what are the compelling benefits of diversity in higher education?

8. What other requirement must the University of Michigan’s admissions program meet? Why is this requirement important? Based on this, what is specifically required of the University of Michigan’s admissions program?

9. According to Justice O’Connor, was the University of Michigan’s program truly tailored narrowly? Why or why not?

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10. Does the law require that the University of Michigan use race-neutral alternatives to increasing racial diversity? If not, what does the law require? Did the University of Michigan Law School meet that requirement?

11. Justice O’Connor emphasized that an affirmative action program could not harm other racial groups. And then she added one more criteria. What does Justice O’Connor expect?

12. In Justice Ruth Bader Ginsburg’s concurring opinion, what several obstacles stand in the way of being able to “firmly forecast” that affirmative action should sunset 25 years from the date of the Opinion (2003)?

13. According to Justice Rehnquist, what is wrong with the University of Michigan Law School’s articulation of the purpose of its critical mass theory and the actual implementation of it with respect to specific minorities? What specifically did Justice Rehnquist note about the treatment between African-Americans and Hispanics?

14. On what basis does Justice Rehnquist assert that the University of Michigan is doing more than just paying some attention to the numbers?

15. What does Justice Rehnquist say about the need for a time limit on an affirmative action program?

16. Why does Justice Kennedy oppose the University of Michigan Law School admissions program? What specific dynamic does he see going on that is constitutionally offensive? How can this dynamic be addressed?

17. What did Justice Kennedy say would be the consequence of the Court deferring to the ways that colleges implemented affirmative action admissions programs?

18. Justice Scalia joined parts of Justice Thomas’ opinion. What did Justice Scalia particularly say that he liked about what Justice Thomas said?

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19. What argument in dissent does Justice Scalia add to the discussion?

20. How does Justice Clarence Thomas invoke the words of Frederick Douglass for a theme of his dissent?

21. What parts of the majority opinion does Justice Thomas agree with?

22. According to Justice Thomas, what do precedents tell us about when racial classifications survive strict scrutiny? Why are racial classifications harmful? 23. What is problematic to Justice Thomas about the alternative that the University of Michigan Law School chose not to take?

24. On what basis does Justice Thomas argue that there is no compelling interest in public legal education in Michigan?

25. What does Justice Thomas suggest about the purported benefits that diversity (racial heterogeneity) will have on African-Americans?

26. How does United States v. Virginia 518 U.S. 515 (1996) serve as a precedent for Justice Thomas? How does Justice Thomas apply it to this case?

27. What does Clarence Thomas say about the ability of law schools to find alternative ways of admission? How is Brown v. Board of Education now a precedent for his perspective?

28. According to Justice Thomas, are there expectations that minorities admitted with the help of affirmative action perform as well as their peers in the classroom? How does actual performance in law school affect minorities themselves and in terms of group stereotypes?

29. According to Justice Thomas, what incentives has this Court’s decision created instead?

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The University of Michigan undergraduate program implemented an affirmative action program that integrated minorities with all other students seeking admission. Minorities received an additional 20 points on their applications. An application score of 100 guaranteed admission out of a possible 150-points that the applicant could earn out of merit. The Supreme Court struck down this admissions program in Gratz v. Bollinger 539 U.S. 244 (2003).

1. Justice Rehnquist wrote the opinion for the Court in Gratz v. Bollinger. What was constitutionally impermissible about the University of Michigan’s undergraduate admissions system? Do you agree with the Court’s assessment?

Justice Powell's opinion in Bakke emphasized the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual's ability to contribute to the unique setting of higher education. The admissions program Justice Powell described, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity. See id., at 315. See also Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 618 (1990) (O'CONNOR, J., dissenting) (concluding that the Federal Communications Commission's policy, which "embodie[d] the related notions ... that a particular applicant, by virtue of race or ethnicity alone, is more valued than other applicants because [the applicant is] 'likely to provide [a] distinct perspective,'" "impermissibly value[d] individuals" based on a presumption that "persons think in a manner associated with their race"). Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicant's entire application.

The current LSA policy does not provide such individualized consideration. The LSA's policy automatically distributes 20 points to every single applicant from an "underrepresented minority" group, as defined by the University. The only consideration that accompanies this distribution of

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points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powell's example, where the race of a "particular black applicant" could be considered without being decisive, see Bakke, 438 U. S., at 317, the LSA's automatic distribution of 20 points has the effect of making "the factor of race ... decisive" for virtually every minimally qualified underrepresented minority applicant. Ibid.19

2. How did the University of Michigan’s Law School admissions program differ in the way that it sought to attract minorities?

The Law School ranks among the Nation's top law schools. It receives more than 3,500 applications each year for a class [*313]  of around 350 students. Seeking to "admit a group of students who individually and collectively are among the most capable," the Law School looks for individuals with "substantial [*314]  promise for success in law school" and "a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others." App. 110. More broadly, the Law School seeks "a mix of students with varying backgrounds and experiences who will respect and learn from each other." Ibid. In 1992, the dean of the Law School charged a faculty committee with crafting a written admissions policy to implement these goals. In particular, the Law School sought to ensure that its efforts to achieve student body diversity complied with this Court's most recent ruling on the use of race in university admissions. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978).  [*315]  Upon the unanimous adoption of the committee's report by the Law School faculty, it became the Law School's official admissions policy.

The hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants' talents, experiences, and potential "to contribute to the learning of those around them." App. 111. The policy requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of

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recommendation,  [**2332]  and an essay describing the ways in which the applicant will contribute to the life and diversity of the [***324]  Law School. Id., at 83-84, 114-121. In reviewing an applicant's file, admissions officials must consider the applicant's undergraduate grade point average (GPA) and Law School Admissions Test (LSAT) score because they are important (if imperfect) predictors of academic success in law school. Id., at 112. The policy stresses that "no applicant should be admitted unless we expect that applicant to do well enough to graduate with no serious academic problems." Id., at 111.

The policy makes clear, however, that even the highest possible score does not guarantee admission to the Law School. Id., at 113. Nor does a low score automatically disqualify an applicant. Ibid. Rather, the policy requires admissions officials to look beyond grades and test scores to other criteria that are important to the Law School's educational objectives. Id., at 114. So-called "'soft' variables" such as "the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant's essay, and the areas and difficulty of undergraduate course selection" are all brought to bear in assessing an "applicant's likely contributions to the intellectual and social life of the institution." Ibid.

The policy aspires to "achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts." Id., at 118. [*316]  The policy does not restrict the types of diversity contributions eligible for "substantial weight" in the admissions process, but instead recognizes "many possible bases for diversity admissions." Id., at 118, 120. The policy does, however, reaffirm the Law School's longstanding commitment to "one particular type of diversity," that is, "racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers." Id., at 120. By enrolling a "'critical mass' of [underrepresented] minority students," the Law School seeks to "ensure their ability to make unique contributions to the character of the Law School." Id., at 120-121.

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The policy does not define diversity "solely in terms of racial and ethnic status." Id., at 121. Nor is the policy "insensitive to the competition among all students for admission to the Law School." Ibid. Rather, the policy seeks to guide admissions officers in "producing classes both diverse and academically outstanding, classes made up of students who promise to continue the tradition of outstanding contribution by Michigan Graduates to the legal profession." Ibid.

3. Who is Barbara Grutter? How did the University of Michigan practically seek to achieve a critical mass of minorities? What are the benefits have having a critical mass of minorities? What did the University of Michigan predict would happen without affirmative action?

Petitioner Barbara Grutter is a white Michigan resident who applied to the Law School in 1996 with a 3.8 grade point average and 161 LSAT score….

During the 15-day bench trial, the parties introduced extensive evidence concerning the Law School's use of race in the admissions process. Dennis Shields, Director of Admissions when petitioner applied to the Law School, testified that he did not direct his staff to admit a particular percentage or number of minority students, but rather to consider an applicant's race along with all other factors. Id., at 206a. Shields testified that at the height of the admissions season, he would frequently consult the so-called "daily reports" that kept track of the racial and ethnic composition of the class (along with other information such as residency status and gender). Id., at 207a. This was done, Shields testified, to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational  [***326]  benefits of a diverse student body. Ibid. Shields stressed, however, that he did not seek to admit any particular number or percentage of underrepresented minority students. Ibid.

Erica Munzel, who succeeded Shields as Director of Admissions, testified that "'critical mass'" means "'meaningful numbers'" or "'meaningful representation, '" which she understood to mean a number that encourages underrepresented minority students to participate in the classroom and not feel isolated. Id., at 208a-

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209a. Munzel stated there is no number, percentage, or range of numbers or percentages that constitute critical mass. Id., at 209a. Munzel also asserted that she must consider the race of applicants because a critical mass of underrepresented minority students could not be enrolled if admissions decisions were based primarily on undergraduate GPAs and LSAT scores. Ibid.

The current Dean of the Law School, Jeffrey Lehman, also testified. Like the other Law School witnesses, Lehman did [*319]  not quantify critical mass in terms of numbers or percentages. Id., at 211a. He indicated that critical mass means numbers [**2334]  such that underrepresented minority students do not feel isolated or like spokespersons for their race. Ibid. When asked about the extent to which race is considered in admissions, Lehman testified that it varies from one applicant to another. Ibid. In some cases, according to Lehman's testimony, an applicant's race may play no role, while in others it may be a "'determinative'" factor. Ibid.

The District Court heard extensive testimony from Professor Richard Lempert, who chaired the faculty committee that drafted the 1992 policy. Lempert emphasized that the Law School seeks students with diverse interests and backgrounds to enhance classroom discussion and the educational experience both inside and outside the classroom. Id., at 213a. When asked about the policy's "'commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against,'" Lempert explained that this language did not purport to remedy past discrimination, but rather to include students who may bring to the Law School a perspective different from that of members of groups which have not been the victims of such discrimination. Ibid. Lempert acknowledged that other groups, such as Asians and Jews, have experienced discrimination, but explained they were not mentioned in the policy because individuals who are members of those groups were already being admitted to the Law School in significant numbers. Ibid.

Kent Syverud was the final witness to testify about the Law School's use of race in admissions decisions. Syverud was a professor at the Law School when the 1992 admissions policy was adopted and is now Dean of Vanderbilt Law School. In addition to

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his testimony at trial, Syverud submitted several expert reports on the educational benefits of diversity. Syverud's testimony indicated that when a critical mass of underrepresented minority students is present,  [*320]  racial stereotypes lose their force because nonminority students learn there is no "'minority viewpoint'" but rather a variety of viewpoints among minority students. Id., at 215a…

Dr. Stephen Raudenbush, the Law School's expert, focused on the predicted effect of eliminating race as a factor in the Law School's admission process. In Dr. Raudenbush's view, a race-blind admissions system would have a "'very dramatic,'" negative effect on underrepresented minority admissions. App. to Pet. for Cert. 223a. He testified that in 2000, 35 percent of underrepresented minority applicants were admitted. Ibid. Dr. Raudenbush predicted that if race were not considered, only 10 percent of those applicants would have been admitted. Ibid. Under this scenario, underrepresented minority students would have comprised 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent. Ibid.

4. According to Justice O’Connor’s Opinion for the Court, what is problematic about finding a precedent to follow in this case? What is the precedent that most people have followed? What does that precedent accept and reject? What will this Court, according to Justice O’Connor, follow?

We last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke case, we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups. 438 U.S. 265, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978). The decision produced six separate opinions, none of which commanded a majority of the Court. Four Justices would have upheld the program against all attack on the ground that the government can use race to "remedy disadvantages cast on minorities by past racial prejudice." Id., at 325, 57 L Ed 2d 750, 98 S Ct 2733 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). Four other Justices avoided the constitutional question altogether and struck

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down the program on statutory grounds. Id., at 408, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Stevens, J., joined by Burger, C. J., and Stewart and Rehnquist, JJ., concurring in judgment in part and dissenting in part). Justice Powell provided a fifth vote not only for invalidating the set-aside program, but [**2336]  also for reversing the state court's injunction against any use of race whatsoever. The only holding for the Court in Bakke was that a "State has a substantial interest that legitimately may be served by a properly devised admissions program involving  [*323]  the competitive consideration of race and ethnic origin." Id., at 320, 57 L Ed 2d 750, 98 S Ct 2733. Thus, we reversed that part of the lower court's judgment that enjoined the university "from any consideration of the race of any applicant." Ibid.

Since this Court's splintered decision in Bakke, Justice Powell's opinion announcing the judgment of the Court has served as the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the Nation have modeled their own admissions programs on Justice Powell's views on permissible race-conscious  [***329]  policies. See, e.g., Brief for Judith Areen et al. as Amici Curiae 12-13 (law school admissions programs employ "methods designed from and based on Justice Powell's opinion in Bakke"); Brief for Amherst College et al. as Amici Curiae 27 ("After Bakke, each of the amici (and undoubtedly other selective colleges and universities as well) reviewed their admissions procedures in light of Justice Powell's opinion . . . and set sail accordingly"). We therefore discuss Justice Powell's opinion in some detail.

Justice Powell began by stating that "the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." Bakke, 438 U.S., at 289- 290, 57 L Ed 2d 750, 98 S Ct 2733. In Justice Powell's view, when governmental decisions "touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest." Id., at 299, 57 L Ed 2d 750, 98 S Ct 2733. Under this exacting standard, only one of the interests asserted by the university survived Justice Powell's scrutiny.

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First, Justice Powell rejected an interest in "'reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession'" as an unlawful interest in racial balancing. Id., at 306-307, 57 L Ed 2d 750, 98 S Ct 2733. Second, Justice Powell rejected an interest in remedying societal discrimination  [*324]  because such measures would risk placing unnecessary burdens on innocent third parties "who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered." Id., at 310, 57 L Ed 2d 750, 98 S Ct 2733. Third, Justice Powell rejected an interest in "increasing the number of physicians who will practice in communities currently underserved," concluding that even if such an interest could be compelling in some circumstances the program under review was not "geared to promote that goal." Id., at 306, 310, 57 L Ed 2d 750, 98 S Ct 2733.

Justice Powell approved the university's use of race to further only one interest: "the attainment of a diverse student body." Id., at 311, 57 L Ed 2d 750, 98 S Ct 2733. With the important proviso that "constitutional limitations protecting individual rights may not be disregarded," Justice Powell grounded his analysis in the academic freedom that "long has been viewed as a special concern of the First Amendment." Id., at 312, 314, 57 L Ed 2d 750, 98 S Ct 2733. Justice Powell emphasized that nothing less than the "'nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples." Id., at 313, 57 L Ed 2d 750, 98 S Ct 2733 (quoting Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S. 589, 603, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967)). In seeking the "right to select those students who will contribute the most to the 'robust exchange of ideas,'" a university seeks "to achieve a goal that is of paramount importance in the fulfillment of its mission." 438 US, at 313, 57 L Ed 2d 750, 98 S Ct 2733. Both "tradition and experience lend support  [***330]  to [**2337]  the view that the contribution of diversity is substantial." Ibid.

Justice Powell was, however, careful to emphasize that in his view race "is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body." Id., at 314, 57 L Ed 2d 750, 98 S Ct 2733. For Justice Powell, "it is not an interest in simple ethnic diversity, in

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which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups," that [*325]  can justify the use of race. Id., at 315, 57 L Ed 2d 750, 98 S Ct 2733. Rather, "the diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Ibid.

In the wake of our fractured decision in Bakke, courts have struggled to discern whether Justice Powell's diversity rationale, set forth in part of the opinion joined by no other Justice, is nonetheless binding precedent under Marks. In that case, we explained that "when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." 430 US, at 193, 51 L Ed 2d 260, 97 S Ct 990 (internal quotation marks and citation omitted). As the divergent opinions of the lower courts demonstrate, however, "this test is more easily stated than applied to the various opinions supporting the result in [Bakke]." Nichols v. United States, 511 U.S. 738, 745-746, 128 L. Ed. 2d 745, 114 S. Ct. 1921 (1994) . Compare, e.g., Johnson v. Board of Regents of Univ. of Ga., 263 F.3d 1234 (CA11 2001) (Justice Powell's diversity rationale was not the holding of the Court); Hopwood v. Texas, 236 F.3d 256, 274-275 (CA5 2000) (Hopwood II) (same); Hopwood I, 78 F.3d 932 (same), with Smith v. Univ. of Wash. Law School, 233 F.3d 1188 (Justice Powell's opinion, including the diversity rationale, is controlling under Marks).

 [***LEdHR4A] LEdHR(4A)[4B] We do not find it necessary to decide whether Justice Powell's opinion is binding under Marks. It does not seem "useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it." Nichols v. United States, supra, at 745-746, 128 L Ed 2d 745, 114 S Ct 1921. More important, for the reasons set out below, today HN1we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions.

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5. What standard of Equal Protection analysis does Justice Sandra Day O’Connor apply to this case? Why?

We have held that all racial classifications imposed by government "must be analyzed by a reviewing court under strict scrutiny." IbidIbid. This means that such classifications are constitutional only if they are narrowly tailored to further compelling [**2338]  governmental interests. "Absent searching judicial inquiry into the justification for such race-based measures," we have no way to determine what "classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Richmond v. J. A. Croson Co., 488 U.S. 469, 493, 102 L. Ed. 2d 854, 109 S. Ct. 706 (1989) (plurality opinion). We apply strict scrutiny to all racial classifications to "'smoke out' illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool." Ibid.

Strict HN4scrutiny is not "strict in theory, but fatal in fact." Adarand Constructors, Inc. v. Pena, supra, at 237, 132 L Ed 2d 158, 115 S Ct 2097 (internal quotation marks and citation omitted). Although all governmental  [*327]  uses of race are subject to strict scrutiny, not all are invalidated by it. As we have explained, "whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection." 515 U.S., at 229-230, 132 L Ed 2d 158, 115 S Ct 2097. But that observation "says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny." Id., at 230, 132 L Ed 2d 158, 115 S Ct 2097. When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied.

6. What precedent would have suggested that the use of race for diversity in public education would have been prohibited? Why did Sandra Day O’Connor explain that this precedent did not apply? We first wish to dispel the notion that the Law School's argument has been foreclosed, either expressly or implicitly, by our

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affirmative-action cases decided since Bakke. It is true that some language in those opinions might be read to suggest that remedying past discrimination is the only permissible justification for race-based governmental action. See, e.g., Richmond v. J. A. Croson Co., supra, at 493, 102 L Ed 2d 854, 109 S Ct 706 (plurality opinion) (stating that unless classifications based on race are "strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of [**2339]  racial hostility"). But we have never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination. Nor, since Bakke, have we directly addressed the use of race in the context of public higher education. Today, we hold that the Law School has a compelling interest in attaining a diverse student body.

 [***LEdHR8A] LEdHR(8A)[8C] The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School's assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 88 L. Ed. 2d 523, 106 S. Ct. 507 (1985); Board of Curators of Univ. of Mo. [*329]  v. Horowitz, 435 U.S. 78, 96, n. 6, 55 L. Ed. 2d 124, 98 S. Ct. 948 (1978); Bakke, 438 U.S., at 319, n. 53, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell, J.).

 [***LEdHR8A] LEdHR(8A)[8D]  [***LEdHR9] LEdHR(9)[9] We have long recognized that, HN6given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. See, e.g., Wieman v. Updegraff, 344 U.S. 183, 195, 97 L. Ed. 216, 73 S. Ct. 215 (1952) (Frankfurter, J., concurring); Sweezy v. New Hampshire, 354 U.S. 234, 250, 1 L. Ed. 2d 1311, 77 S. Ct. 1203 (1957); Shelton v. Tucker, 364 U.S. 479, 487, 5 L. Ed. 2d 231, 81 S. Ct. 247 (1960); Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S., at 603, 17 L Ed 2d 629, 87 S Ct 675. In announcing the principle

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of student body diversity as a compelling state interest, Justice Powell  [***333]  invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: "The freedom of a university to make its own judgments as to education includes the selection of its student body." Bakke, supra, at 312, 57 L Ed 2d 750, 98 S Ct 2733. From this premise, Justice Powell reasoned that by claiming "the right to select those students who will contribute the most to the 'robust exchange of ideas,'" a university "seeks to achieve a goal that is of paramount importance in the fulfillment of its mission." 438 US, at 313, 57 L Ed 2d 750, 98 S Ct 2733 (quoting Keyishian v. Board of Regents of Univ. of State of N. Y., supra, at 603, 17 L Ed 2d 629, 87 S Ct 675). Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School's proper institutional mission, and that "good faith" on the part of a university is "presumed" absent "a showing to the contrary." 438 U.S., at 318-319, 57 L Ed 2d 750, 98 S Ct 2733.

7. According to Justice O’Connor, what are the compelling benefits of diversity in higher education?

Rather, the Law School's concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.

 [***LEdHR8A] LEdHR(8A)[8F] These benefits are substantial. As the District Court emphasized, the Law School's admissions policy promotes "cross-racial understanding," helps to [**2340]  break down racial stereotypes, and "enables [students] to better understand persons of different races." App. to Pet. for Cert. 246a. These benefits are "important and laudable," because "classroom discussion is livelier, more spirited, and simply more enlightening and interesting" when the students have "the greatest possible variety of backgrounds." Id., at 246a, 244a.

The Law School's claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and

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"better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." Brief for American Educational Research Association et al. as Amici Curiae 3; see, e.g., W. Bowen & D. Bok, The Shape of the River (1998); Diversity Challenged: Evidence on the Impact of Affirmative Action (G. Orfield & M. Kurlaender eds. 2001); Compelling Interest: Examining the Evidence on Racial Dynamics in Colleges and Universities (M. Chang, D. Witt, J. Jones, & K. Hakuta eds. 2003).

These benefits are not theoretical  [***334]  but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae  [*331] 5; Brief for General Motors Corp. as Amicus Curiae 3-4. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, "based on [their] decades of experience," a "highly qualified, racially diverse officer corps . . . is essential to the military's ability to fulfill its principle mission to provide national security." Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27. The primary sources for the Nation's officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Id., at 5. At present, "the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies." Ibid. (emphasis in original). To fulfill its mission, the military "must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting." Id., at 29 (emphasis in original). We agree that "it requires only a small step from this analysis to conclude that our country's other most selective institutions must remain both diverse and selective." Ibid.

HN8We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to "sustaining our political and cultural heritage" with a fundamental role in maintaining the fabric of society. Plyler v. Doe, 457 U.S. 202, 221, 72 L. Ed. 2d 786, 102 S.

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Ct. 2382 (1982). This Court has long recognized that "education . . . is the very foundation of good citizenship." Brown v. Board of Education, 347 U.S. 483, 493, 98 L. Ed. 873, 74 S. Ct. 686 (1954). For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. The United States, as amicus curiae, affirms that "ensuring that public institutions are open and available to all segments of American [*332]  society, including people of all races and ethnicities, represents a paramount government objective." Brief for United States as Amicus Curiae 13. And, "nowhere is the importance of such openness more acute than in the context of higher education." Ibid. Effective participation by members of all racial and ethnic groups in the civic life of our Nation is [**2341]  essential if the dream of one Nation, indivisible, is to be realized.

Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders. Sweatt v. Painter, 339 U.S. 629, 634, 94 L. Ed. 1114, 70 S. Ct. 848 (1950) (describing law school as a "proving ground for legal learning and practice"). Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. See Brief for Association of American  [***335]  Law Schools as Amicus Curiae 5-6. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges. Id., at 6.

In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools "cannot be effective in isolation from the individuals and institutions with which the law interacts." See Sweatt v. Painter, supra, at 634, 94 L Ed 1114, 70 S Ct 848. Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so

17

that all members of our heterogeneous society  [*333]  may participate in the educational institutions that provide the training and education necessary to succeed in America.

The Law School does not premise its need for critical mass on "any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue." Brief for Respondent Bollinger et al. 30. To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School's mission, and one that it cannot accomplish with only token numbers of minority students.

8. What other requirement must the University of Michigan’s admissions program meet? Why is this requirement important? Based on this, what is specifically required of the University of Michigan’s admissions program?

[11] Even HN10in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still "constrained in how it may pursue that end: [T]he means chosen to accomplish the [government's] asserted purpose must be specifically and narrowly framed to accomplish that purpose." Shaw v. Hunt, 517 U.S. 899, 908, 135 L. Ed. 2d 207, 116 S. Ct. 1894 (1996) (internal quotation marks and citation omitted). The purpose of the narrow tailoring requirement is to ensure that "the means chosen 'fit' . . . the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype." Richmond v. J. A. Croson Co., 488 U.S., at 493, 102 L Ed 2d 854, 109 S Ct 706 (plurality opinion).

To be narrowly tailored, a race-conscious admissions program cannot use a quota system--it cannot "insulate each category of applicants with certain desired qualifications from competition with all other applicants." Bakke, supra, at 315, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell, J.). Instead, a university may consider race or ethnicity only as a "'plus' in a particular applicant's file," without "insulating the individual from comparison with all other candidates for the available seats." Id., at 317, 57 L Ed 2d 750, 98 S Ct 2733. In other words, an admissions program must be "flexible enough to consider all

18

pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Ibid.

9. According to Justice O’Connor, was the University of Michigan’s program truly tailored narrowly? Why or why not?

We find that the Law School's admissions program bears the hallmarks of a narrowly tailored plan. As Justice Powell made clear in Bakke, HN13truly individualized consideration demands that race be used in a flexible, nonmechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks….

The Law School's goal of attaining a critical mass of underrepresented minority students does not transform its program  [*336]  into a quota. As the Harvard plan described by Justice Powell recognized, there is of course "some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted." Id., at 323, 57 L Ed 2d 750, 98 S Ct 2733. HN15 "Some attention to numbers," without more, does not transform a flexible admissions system into a rigid quota. Ibid. Nor, as Justice Kennedy posits, does the Law School's consultation of the "daily reports," which keep track of the racial and ethnic composition of the class (as well as of residency and gender), "suggest[] there was no further attempt at individual review save for race itself" during the final stages of the admissions process. See post, at 156 L Ed 2d, at 373 (dissenting opinion). To the contrary, the Law School's admissions officers testified without contradiction that they never gave race any more or less weight based on the information contained in these reports. Brief for Respondents Bollinger et al. 43, n 70 (citing App. in Nos. 01-1447 and 01-1516 (CA6), p 7336). Moreover, as Justice Kennedy concedes, see post, at 156 L Ed 2d, at 372, between 1993 and 2000, the number of African-American, Latino, and Native-American students in each class at the Law School varied from 13.5 to 20.1 percent, a range inconsistent with a quota.

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The Chief Justice believes that the Law School's policy conceals an attempt to achieve racial balancing, and cites admissions data to contend that the Law School discriminates among different groups within the critical mass. Post, at 156 L Ed 2d, at 371-375 (dissenting opinion). But, as the Chief Justice concedes, the number of underrepresented minority students who ultimately enroll in the Law School differs substantially from their representation in the applicant pool and varies considerably for each group from year to year. See post, at 156 L Ed 2d, at 375 (dissenting opinion).

 [***LEdHR16] LEdHR(16)[16] That HN16a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the requirement of individualized consideration. When using race as a "plus"  [*337]  factor in university admissions, a university's admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way [***338]  that makes an applicant's race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount. See Bakke, supra, at 318, n. 52, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell, J.) (identifying the "denial . . . of the right to individualized consideration" as the "principal evil" of the medical school's admissions program).

 [***LEdHR13A] LEdHR(13A)[13C]  [***LEdHR17] LEdHR(17)[17] Here, the Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. The Law School affords this individualized consideration to applicants of all races. There is no policy, either de jure or de facto, of automatic acceptance or rejection based on any single "soft" variable. Unlike the program at issue in Gratz v Bollinger, ante, the Law School awards no mechanical, predetermined diversity "bonuses" based on race or ethnicity. See ante, at 539 U.S. 244, 156 L Ed 2d 257, 123 S Ct 2411 (distinguishing a race-conscious admissions program that automatically awards 20 points based on race from the Harvard plan, which considered race but "did not contemplate that any single characteristic automatically ensured a specific and

20

identifiable contribution to a university's diversity"). Like the Harvard plan, the Law School's admissions policy "is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration,  [**2344]  although not necessarily according them the same weight." Bakke, supra, at 317, at 317, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell, J.).

 [***LEdHR13A] LEdHR(13A)[13D]  [***LEdHR18A] LEdHR(18A)[18A] We also find that, like the Harvard plan Justice Powell referenced in Bakke, the Law School's race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions. With respect  [*338]  to the use of race itself, all underrepresented minority students admitted by the Law School have been deemed qualified. By virtue of our Nation's struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences. See App. 120.

 [***LEdHR18A] LEdHR(18A)[18B] The Law School does not, however, limit in any way the broad range of qualities and experiences that may be considered valuable contributions to student body diversity. To the contrary, the 1992 policy makes clear "there are many possible bases for diversity admissions," and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields. Id., at 118-119. The Law School seriously considers each "applicant's promise of making a notable contribution to the class by way of a particular strength, attainment, or characteristic--e.g., an unusual intellectual achievement, employment experience, nonacademic performance, or personal background." Id., at 83-84. All applicants have the opportunity [***339]  to highlight their own potential diversity contributions through the submission of a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School.

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What is more, the Law School actually gives substantial weight to diversity factors besides race. The Law School frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected. See Brief for Respondents Bollinger et al. 10; App. 121-122. This shows that the Law School seriously weighs many other diversity factors besides race that can make a real and dispositive difference for nonminority applicants as well. By this  [*339]  flexible approach, the Law School sufficiently takes into account, in practice as well as in theory, a wide variety of characteristics besides race and ethnicity that contribute to a diverse student body. Justice Kennedy speculates that "race is likely outcome determinative for many members of minority groups" who do not fall within the upper range of LSAT scores and grades. Post, at 156 L Ed 2d, at 371 (dissenting opinion). But the same could be said of the Harvard plan discussed approvingly by Justice Powell in Bakke, and indeed of any plan that uses race as one of many factors. See 438 US, at 316, 57 L Ed 2d 750, 98 S Ct 2733 ("'When the Committee on Admissions reviews the large middle group of applicants who are "admissible" and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor'").

10. Does the law require that the University of Michigan use race-neutral alternatives to increasing racial diversity? If not, what does the law require? Did the University of Michigan Law School meet that requirement?

Petitioner and the United States argue that the Law School's plan is not narrowly tailored because race-neutral means exist to obtain the educational benefits of student body diversity that the Law School seeks. We disagree. HN17 Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups. See Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 280, n. 6, 90 L. Ed. 2d 260, 106 S. Ct. 1842 (1986) (alternatives must serve the interest "'about as well'"); Richmond v. J. A. Croson Co., 488 U.S., at 509- 510, 102 L Ed 2d 854,  [**2345]  109 S Ct 706 (plurality opinion) (city had a "whole array of race-neutral" alternatives because changing requirements "would have [had] little detrimental effect

22

on the city's interests"). Narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks. See id., at 507, 102 L Ed 2d 854, 109 S Ct 706 (set-aside plan not narrowly tailored where "there does not appear to have been any consideration of the use of race-neutral means"); Wygant v. Jackson Bd. of Ed., supra, at 280, n. 6, 90 L Ed 2d 260, 106 S Ct 1842 (narrow tailoring  [*340]  "requires consideration" of "lawful alternative and less restrictive means").

 [***LEdHR13A] LEdHR(13A)[13E]  [***LEdHR19A] LEdHR(19A)[19B] We agree with the Court of Appeals that the Law School sufficiently considered workable race-neutral alternatives. The District Court took the Law School to task for failing to consider race-neutral alternatives such as "using a lottery system" or "decreasing the emphasis  [***340]  for all applicants on undergraduate GPA and LSAT scores." App. to Pet. for Cert. 251a. But these alternatives would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both.

The Law School's current admissions program considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race. Because a lottery would make that kind of nuanced judgment impossible, it would effectively sacrifice all other educational values, not to mention every other kind of diversity. So too with the suggestion that the Law School simply lower admissions standards for all students, a drastic remedy that would require the Law School to become a much different institution and sacrifice a vital component of its educational mission.

11. Justice O’Connor emphasized that an affirmative action program could not harm other racial groups. And then she added one more criteria. What does Justice O’Connor expect?

We are mindful, however, that HN20"[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race." Palmore v. Sidoti,  [*342]  466 U.S. 429, 432, 80 L. Ed. 2d 421, 104 S. Ct. 1879 (1984). Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications,

23

however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all "race-conscious programs must have reasonable durational limits." Brief for Respondents Bollinger et al. 32….

We take the Law School at its word that it would "like nothing better than to find a race-neutral admissions formula" and will terminate its  [***342]  race-conscious admissions program as soon as practicable. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317-318, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased.  [**2347]  See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

12. In Justice Ruth Bader Ginsburg’s concurring opinion, what several obstacles stand in the way of being able to “firmly forecast” that affirmative action should sunset 25 years from the date of the Opinion (2003)?

The Court further observes that "it has been 25 years since Justice Powell [in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978) first approved the use of race to further an interest in student body diversity in the context of public higher education." Ante, at 156 L Ed 2d, at 342. For at least part of that  [*345]  time, however, the law could not fairly be described as "settled," and in some regions of the Nation, overtly race-conscious admissions policies have been proscribed. See Hopwood v. Texas, 78 F.3d 932 (CA5 1996); cf. Wessmann v. Gittens, 160 F.3d 790 (CA1 1998) ; Tuttle v. Arlington Cty. School Bd., 195 F.3d 698 (CA4 1999); Johnson v. Board of Regents of Univ. of Ga., 263 F.3d 1234 (CA11 2001). Moreover, it was only

24

25 years before Bakke that this Court declared public school segregation unconstitutional, a declaration that, after prolonged resistance, yielded an end to a law-enforced racial caste system, itself the legacy of centuries of slavery. See Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954); cf. Cooper v. Aaron, 358 U.S. 1, 3 L. Ed. 2d 5, 78 S. Ct. 1401, 79 Ohio Law Abs. 452 (1958).

It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest [**2348]  values and ideals. See, e.g., Gratz v Bollinger, ante, at 156 L Ed 2d 257, 123 S Ct 2411 (Ginsburg, J., dissenting); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 272-274, 132 L. Ed. 2d 158, 115 S. Ct. 2097 (1995) (Ginsburg, J., dissenting); Krieger, Civil Rights Perestroika: Intergroup Relations after Affirmative Action, 86 Calif. L. Rev. 1251, 1276-1291, 1303 (1998) . As to public education, data for the years 2000-2001 show that 71.6% of African-American children and 76.3% of Hispanic children attended a school in which minorities made up a majority of the student body. See E. Frankenberg, C. Lee, & G. Orfield, A Multiracial Society with Segregated Schools: Are We Losing the Dream? p 4 (Jan. 2003), http://www.civilrightsproject.harvard.edu.ezp.lib.rochester.edu/research/reseg03/AreWeLosingtheDrea m.pdf (as visited June 16, 2003, and available in Clerk of Court's case file). And schools in predominantly minority communities lag far behind others measured by the educational resources available to them. See id., at 11; Brief for National Urban League et al. as Amici Curiae 11-12 (citing General Accounting Office, Per-Pupil Spending Differences Between Selected Inner City and Suburban Schools Varied by Metropolitan Area, 17 (2002)).

 [*346]  However strong the public's desire for improved education systems may be, see P. Hart & R. Teeter, A National Priority: Americans Speak on Teacher Quality 2, 11 (2002) (public opinion research conducted for Educational Testing Service); The No Child Left Behind Act of 2001, Pub L 107-110, 115 Stat 1425, 20 USC § 7231 [20 USCS § 7231], it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities. Despite these inequalities, some minority students are able to meet the high threshold requirements set for admission to the country's finest

25

undergraduate and graduate educational institutions.  [***344]  As lower school education in minority communities improves, an increase in the number of such students may be anticipated. From today's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action. *

13. According to Justice Rehnquist, what is wrong with the University of Michigan Law School’s articulation of the purpose of its critical mass theory and the actual implementation of it with respect to specific minorities? What specifically did Justice Rehnquist note about the treatment between African-Americans and Hispanics?

Stripped of its "critical mass" veil, the Law School's program is revealed as a naked effort to achieve racial balancing….

Respondents' asserted justification for the Law School's use of race in the admissions process is "obtaining 'the educational benefits that flow from a diverse student body.'" Ante, at 156 L Ed 2d, at 332 (quoting Brief for Respondents Bollinger et al. i). They contend that a "critical mass" of underrepresented minorities is necessary to further that interest. Ante, at 156 L Ed 2d, at 333. Respondents and school administrators explain generally that "critical mass" means a sufficient number of underrepresented minority students to achieve several objectives: To ensure that these minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes. See App. to Pet. for Cert. 211a; Brief for Respondents Bollinger et al. 26. These objectives indicate that "critical mass" relates to the size of the student body. Id., at 5 (claiming that the Law School has enrolled "critical mass," or "enough minority students to provide meaningful integration of its classrooms and residence halls"). Respondents further claim that the Law School is achieving "critical mass." Id., at 4 (noting that the Law School's goals have been "greatly furthered by the presence of . . . a 'critical mass' of" minority students in the student body).

26

In practice, the Law School's program bears little or no relation to its asserted goal of achieving "critical mass." Respondents explain that the Law School seeks to accumulate a "critical mass" of each underrepresented minority  [*381] group. See, e.g., id., at 49, n 79 ("The Law School's . . . current policy . . . provides a special commitment to enrolling a 'critical mass' of 'Hispanics'"). But the record demonstrates that the Law School's admissions practices with respect to these groups differ dramatically and cannot be defended under any consistent use of the term "critical mass."

From 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those, between 13 and 19 were Native American, between 91 and 108 were African-Americans, [***366]  and between 47 and 56 were Hispanic. If the Law School is admitting between 91 and 108 African-Americans in order to achieve "critical mass," thereby preventing African-American students from feeling "isolated or like spokespersons for their race," one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans. Similarly, even if [**2367]  all of the Native American applicants admitted in a given year matriculate, which the record demonstrates is not at all the case, * how can this possibly constitute a "critical mass" of Native Americans in a class of over 350 students? In order for this pattern of admission to be consistent with the Law School's explanation of "critical mass," one would have to believe that the objectives of "critical mass" offered by respondents are achieved with only half the number of Hispanics and one-sixth the number of Native Americans as compared to African-Americans. But respondents offer no race-specific reasons for such disparities. Instead, they simply emphasize the importance of achieving "critical mass," without any explanation of why that concept is applied differently among the three underrepresented minority groups.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -* Indeed, during this 5-year time period, enrollment of Native American students dropped to as low as three such students. Any assertion that such a small group constituted a "critical mass" of Native Americans is simply absurd.

These different numbers, moreover, come only as a result of

27

substantially different treatment among the three underrepresented minority groups, as is apparent in an example offered by the Law School and highlighted by the Court: The school asserts that it "frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected." Ante, at 156 L Ed 2d, at 335 (citing Brief for Respondents Bollinger et al. 10). Specifically, the Law School states that "sixty-nine minority applicants were rejected between 1995 and 2000 with at least a 3.5 [Grade Point Average (GPA)] and a [score of] 159 or higher on the [Law School Admissions Test (LSAT)]" while a number of Caucasian and Asian-American applicants with similar or lower scores were admitted. Brief for Respondents Bollinger et al. 10.

Review of the record reveals only 67 such individuals. Of these 67 individuals, 56 were Hispanic, while only 6 were African-American, and only 5 were Native American. This discrepancy reflects a consistent practice. For example, in 2000, 12 Hispanics who scored between a 159-160 on the LSAT and earned a GPA of 3.00 or higher applied for admission and only 2 were admitted. App. 200-201. Meanwhile, 12 African-Americans in the same range of qualifications applied for admission and all 12 were admitted. Id., at 198. Likewise, that same year, 16 Hispanics who scored between a 151-153 on the LSAT and earned a 3.00 or higher applied for admission and only 1 of those applicants was admitted. Id., at 200-201. Twenty-three similarly qualified African-Americans applied for admission and 14 were admitted. Id., at 198.

These statistics have a significant bearing on petitioner's case. Respondents have never offered any race-specific arguments explaining why  [***367]  significantly more individuals from one underrepresented minority group are needed in order to achieve "critical mass" or further student body diversity. They certainly have not explained why Hispanics, who they  [*383]  have said are among "the groups most isolated by racial barriers in our country," should have their admission capped out in this manner. Brief for Respondents Bollinger et al. 50. True, petitioner is neither Hispanic nor Native American. But the Law School's disparate admissions practices with respect to these minority groups demonstrate that its alleged goal of "critical mass" is

28

simply a sham. Petitioner may use these statistics to expose this sham, which is the basis for the Law School's admission of less qualified underrepresented minorities in preference to her. Surely strict scrutiny cannot permit these sort of disparities without at least some explanation.

14. On what basis does Justice Rehnquist assert that the University of Michigan is doing more than just paying some attention to the numbers?

But the correlation between the percentage of the Law School's pool of applicants who are members of the three minority groups and the percentage of the admitted applicants who are members of these same groups is far too precise to be dismissed as merely the result of the school paying "some attention to [the] numbers." As the tables below show, from 1995 through 2000 the percentage of admitted applicants who were members of these minority groups closely tracked the percentage of individuals in the school's applicant pool who were from the same groups. [***368]   [*384] 

Table 1             % of      % of Number of Number of admitted    Number of applicants applicants African- applicants  Number of African- who were admitted American who were  law school American African- by the law applicants African

Year applicants applicants American school admitted American1995 4147 404 9.7% 1130 106 9.4%1996 3677 342 9.3% 1170 108 9.2%1997 3429 320 9.3% 1218 101 8.3%1998 3537 304 8.6% 1310 103 7.9%1999 3400 247 7.3% 1280 91 7.1%

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2000 3432 259 7.5% 1249 91 7.3%Table 2

         Number of   % of      % of applicants Number of admitted  Number of Number of applicants admitted Hispanic applicants  law school Hispanic who were by the law applicants who were

Year applicants applicants Hispanic school admitted Hispanic1995 4147 213 5.1% 1130 56 5.0%1996 3677 186 5.1% 1170 54 4.6%1997 3429 163 4.8% 1218 47 3.9%1998 3537 150 4.2% 1310 55 4.2%1999 3400 152 4.5% 1280 48 3.8%2000 3432 168 4.9% 1249 53 4.2%

Table 3             % of      % of Number of Number of admitted    Number of applicants applicants Native applicants  Number of Native who were admitted American who were  law school American Native by the law applicants Native

Year applicants applicants American school admitted American1995 4147 45 1.1% 1130 14 1.2%1996 3677 31 0.8% 1170 13 1.1%1997 3429 37 1.1% 1218 19 1.6%1998 3537 40 1.1% 1310 18 1.4%1999 3400 25 0.7% 1280 13 1.0%2000 3432 35 1.0% 1249 14 1.1%

 [**2369]   [***369]   [*385]  For example, in 1995, when 9.7% of the applicant pool was African-American, 9.4% of the admitted class was African-American. By 2000, only 7.5% of the applicant pool was African-American, and 7.3% of the admitted class was African-American. This correlation is striking. Respondents themselves emphasize that the number of underrepresented minority students admitted to the Law School would be significantly smaller if the race of each applicant were not

30

considered. See App. to Pet. for Cert. 223a; Brief for Respondents Bollinger et al. 6 (quoting App. to Pet. for Cert. of Bollinger et al. 299a). But, as the examples above illustrate, the measure of the decrease would differ dramatically among the groups. The tight correlation between the percentage of applicants and admittees of a given race, therefore, must result from careful race based planning by the Law School. It suggests a formula for admission based on the aspirational assumption that all applicants are equally qualified academically, and therefore that the proportion of each group admitted should be the same as the proportion of that group in the applicant pool. See Brief for Respondents Bollinger et al. 43, n 70 (discussing admissions officers' use of "periodic reports" to track "the racial composition of the developing class").

Not only do respondents fail to explain this phenomenon, they attempt to obscure it. See id., at 32, n 50 ("The Law School's minority enrollment percentages . . . diverged from the percentages in the applicant pool by as much as 17.7% from 1995-2000"). But the divergence between the percentages of underrepresented minorities in the applicant pool and in the enrolled classes is not the only relevant comparison. In fact, it may not be the most relevant comparison. The Law School cannot precisely control which of its admitted applicants decide to attend the university. But it can and, as the numbers demonstrate, clearly does employ racial preferences in extending offers of admission. Indeed, the ostensibly flexible nature of the Law School's admissions program  [*386]  that the Court finds appealing, see ante, at 156 L Ed 2d, at 337-338, appears to be, in practice, a carefully managed program designed to ensure proportionate representation of applicants from selected minority groups.

15. What does Justice Rehnquist say about the need for a time limit on an affirmative action program?

Finally, I believe that the Law School's program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School's use of race in admissions. We have emphasized that we will consider "the planned duration of the remedy" in determining whether a race-conscious program is constitutional. Fullilove, 448 U.S., at 510, 65 L Ed 2d 902, 100 S

31

Ct 2758 (Powell, J. concurring); see also United States  [***370]  v. Paradise, 480 U.S. 149, 171, 94 L. Ed. 2d 203, 107 S. Ct. 1053 (1987) ("In determining whether race-conscious remedies are appropriate, we look to several factors, including the . . . duration of the relief"). Our previous cases have required some limit on the duration of programs such as this because discrimination on the basis of race is invidious.

The Court suggests a possible 25-year limitation on the Law School's current program.  [**2370]  See ante, at 156 L Ed 2d, at 341. Respondents, on the other hand, remain more ambiguous, explaining that "the Law School of course recognizes that race-conscious programs must have reasonable durational limits, and the Sixth Circuit properly found such a limit in the Law School's resolve to cease considering race when genuine race-neutral alternatives become available." Brief for Respondents Bollinger et al. 32. These discussions of a time  [*387]  limit are the vaguest of assurances. In truth, they permit the Law School's use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny--that a program be limited in time--is casually subverted.

16. Why does Justice Kennedy oppose the University of Michigan Law School admissions program? What specific dynamic does he see going on that is constitutionally offensive? How can this dynamic be addressed?

The opinion by Justice Powell, in my view, states the correct rule for resolving this case. The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents….

The Court confuses deference to a university's definition [**2371]  of its educational objective with deference to the implementation of this goal. In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued. Preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.

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The majority today refuses to be faithful to the settled principle of strict review designed to reflect these concerns….

The dissenting opinion by The Chief Justice, which I join in full, demonstrates beyond question why the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas. An effort to achieve racial balance among the minorities the school seeks to attract is, by the Court's own admission, "patently unconstitutional." Ante, at 156 L Ed 2d, at 333; see also Bakke, 438 U. S, at 307, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell, J.). It remains to point out how critical mass becomes inconsistent with individual consideration in some more specific aspects of the admissions process….

About 80 to 85 percent of the places in the entering class are given to applicants in the upper range of Law School Admissions Test scores and grades. An applicant with these credentials likely will be admitted without consideration of race or ethnicity. With respect to the remaining 15 to 20 percent of the seats, race is likely outcome determinative for many members of minority groups. That is where the competition becomes tight and where any given applicant's chance of admission is far smaller if he or she lacks minority status. At this point the numerical concept of critical mass has the real  [***372]  potential to compromise individual review.

The Law School has not demonstrated how individual consideration is, or can be, preserved at this stage of the application process given the instruction to attain what it calls critical mass. In fact the evidence shows otherwise. There was little deviation among admitted minority students during the years from 1995 to 1998. The percentage of enrolled minorities fluctuated only by 0.3%, from 13.5% to 13.8%. The number of minority students to whom offers were extended varied by just a slightly greater magnitude of 2.2%, from the high of 15.6% in 1995 to the low of 13.4% in 1998.

Year Percentage  of enrolled  minority

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  students1987 12.3%1988 13.6%1989 14.4%1990 13.4%1991 19.1%1992 19.8%1993 14.5%1994 20.1%1995 13.5%1996 13.8%1997 13.6%1998 13.8%

The narrow fluctuation band raises an inference that the Law School subverted individual determination, and strict  [*391]  scrutiny requires the Law School to overcome the inference. Whether the objective of critical mass "is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status," and so risks compromising individual assessment. Bakke, 438 US, at 289, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell, J.). In this respect the Law School program compares unfavorably with the experience of Little Ivy League colleges. Amicus Amherst College, for example, informs us that the offers it extended to students of African-American background during the period from 1993 to 2002 ranged between 81 and 125 out of 950 offers total, resulting in a fluctuation from 24 to 49 matriculated students in a class of about 425. See Brief for Amherst College et al. as Amici Curiae [***373]  10-11. The Law School insisted upon a much smaller fluctuation, both in the offers extended and in the students who eventually enrolled, despite having a comparable class size.

The obvious tension between the pursuit of critical mass and the requirement of individual review increased by the end of the admissions season. Most of the decisions where race may decide the outcome are made during this period. See supra, at 156 L Ed 2d, at 371. The admissions officers consulted the daily reports which indicated the composition of the incoming class along racial lines. As Dennis Shields, Director of Admissions from 1991

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to 1996, stated, "the further [he] went into the [admissions] season the more frequently [he] would  [*392]  want to look at these [reports] and see the change from day-to-day." These reports would "track exactly where [the Law School] stood at any given time in assembling the class," and so would tell the admissions personnel whether they were short of assembling a critical mass of minority students. Shields generated these reports because the Law School's admissions policy told him the racial make-up of the entering class was "something [he] needed to be concerned about," and so he had "to find a way of tracking what's going on."

The consultation of daily reports during the last stages in the admissions process suggests there was no further attempt at individual review save for race itself. The admissions officers could use the reports to recalibrate the plus factor given to race depending on how close they were to achieving the Law School's goal of critical mass. The bonus factor of race would then become divorced from individual review; it would be premised instead on the numerical objective set by the Law School.

 [**2373]  The Law School made no effort to guard against this danger. It provided no guidelines to its admissions personnel on how to reconcile individual assessment with the directive to admit a critical mass of minority students. The admissions program could have been structured to eliminate at least some of the risk that the promise of individual evaluation was not being kept. The daily consideration of racial breakdown of admitted students is not a feature of affirmative-action programs used by other institutions of higher learning. The Little Ivy League colleges, for instance, do not keep ongoing tallies of racial or ethnic composition of their entering students. See Brief for Amherst College et al. as Amici Curiae 10.

To be constitutional, a university's compelling interest in a diverse student body must be achieved by a  [***374]  system where individual assessment is safeguarded through the entire process. There is no constitutional objection to the goal of [*393]  considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become

35

a predominant factor in the admissions decision-making. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny.

17. What did Justice Kennedy say would be the consequence of the Court deferring to the ways that colleges implemented affirmative action admissions programs?

The Court's refusal to apply meaningful strict scrutiny will lead to serious consequences. By deferring to the law schools' choice of minority admissions programs, the courts will lose the talents and resources of the faculties and administrators in devising new and fairer ways to ensure individual consideration. Constant and rigorous judicial review forces the law school faculties to undertake their responsibilities as state employees in this most sensitive of areas with utmost fidelity to the mandate of the Constitution. Dean Allan Stillwagon, who directed the Law School's Office of Admissions from 1979 to 1990, explained the difficulties he encountered in defining racial groups entitled to benefit under the School's affirmative action policy. He testified that faculty members were "breathtakingly cynical" in deciding who would qualify as a member of underrepresented minorities. An example he offered was faculty debate as to whether Cubans should be counted as Hispanics: One professor objected on the grounds that Cubans were Republicans. Many academics at other law schools who are "affirmative action's more forthright defenders readily concede that diversity is merely the current rationale of convenience for a policy that they prefer to justify on other grounds." Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol'y Rev. 1, 34 (2002) (citing Levinson, Diversity, 2 U. Pa. J. Const. L. 573, 577-578 (2000); Rubenfeld, Affirmative Action, 107 Yale L. J. 427, 471 (1997)). This is not to suggest the faculty at Michigan or other law schools do not pursue aspirations they consider laudable and consistent with our constitutional  [*394]  traditions. It is but further evidence of the necessity for scrutiny that is real, not feigned, where the corrosive category of race is a factor in decisionmaking. Prospective students, the courts, and the public can demand that the State and its law schools prove their process is fair and constitutional in every phase of implementation….

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As to the interpretation that the opinion contains its own self-destruct mechanism,  [**2374]  the majority's abandonment of strict scrutiny undermines this objective. Were the courts to apply a searching standard to race-based  [***375]  admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. The Court, by contrast, is willing to be satisfied by the Law School's profession of its own good faith. The majority admits as much: "We take the Law School at its word that it would 'like nothing better than to find a race-neutral admissions formula' and will terminate its race-conscious admissions program as soon as practicable." Ante, at 156 L Ed 2d, at 341 (quoting Brief for Respondent Bollinger et al. 34).

If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review. The unhappy consequence will be to perpetuate the hostilities that proper consideration of race is designed to avoid. The perpetuation, of course, would be the worst of all outcomes. Other programs do exist which will be more effective in  [*395]  bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.

18. Justice Scalia joined parts of Justice Thomas’ opinion. What did Justice Scalia particularly say that he liked about what Justice Thomas said?

I also join Parts I through VII of Justice Thomas's opinion. ** I find particularly unanswerable his central point: that the [**2349]  allegedly "compelling state interest" at issue here is not the incremental "educational benefit" that emanates from the fabled "critical mass" of minority students, but rather Michigan's interest in maintaining a "prestige" law school whose normal admissions standards disproportionately exclude blacks and other minorities. If that is a compelling state interest, everything is.

37

19. What argument in dissent does Justice Scalia add to the discussion?

I add the following: The "educational benefit" that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of "'cross-racial understanding,'" ante, at 156 L Ed 2d, at 333, and "'better prepar[ation of] students for an increasingly diverse workforce and society,'" ibid., all of which is necessary not only for work, but also for good "citizenship," ante, at 156 L Ed 2d, at 334. This is not, of course, an "educational benefit" on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law--essentially the same lesson taught to (or rather learned by, for it cannot be "taught" in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens. If properly considered an "educational benefit" at all, it is surely not one that [***345]  is either uniquely relevant to law school or uniquely "teachable" in a formal educational setting. And therefore: If it is appropriate for the University  [*348]  of Michigan Law School to use racial discrimination for the purpose of putting together a "critical mass" that will convey generic lessons in socialization and good citizenship, surely it is no less appropriate--indeed, particularly appropriate--for the civil service system of the State of Michigan to do so. There, also, those exposed to "critical masses" of certain races will presumably become better Americans, better Michiganders, better civil servants. And surely private employers cannot be criticized--indeed, should be praised--if they also "teach" good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring. The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand.

20. How does Justice Clarence Thomas invoke the words of Frederick Douglass for a theme of his dissent?

Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today's majority:

38

"In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us . . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of  [*350]  their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . Your interference is doing him positive injury." What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).

Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School (Law School). The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of "strict scrutiny."

21. What parts of the majority opinion does Justice Thomas agree with?

The majority upholds the Law School's racial discrimination not by interpreting the people's Constitution, but by responding to a faddish slogan of the cognoscenti. Nevertheless, I concur in part in the Court's opinion. First, I agree with the Court insofar as its decision, which approves of only  [*351]  one racial classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court's holding that racial discrimination in higher education admissions will be  [***347]  illegal in 25 years. See ante, at 156 L Ed 2d, at 342 (stating that racial discrimination will no longer be narrowly tailored, or [**2351]  "necessary to further" a compelling state interest, in 25 years). I respectfully dissent from the remainder of the Court's opinion and the judgment, however, because I believe that the Law School's

39

current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months.

22. According to Justice Thomas, what do precedents tell us about when racial classifications survive strict scrutiny? Why are racial classifications harmful?

The strict scrutiny standard that the Court purports to apply in this case was first enunciated in Korematsu v. United States, 323 U.S. 214, 89 L. Ed. 194, 65 S. Ct. 193 (1944) . There the Court held that "pressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can." Id., at 216, 89 L Ed 194, 65 S Ct 193. This standard of "pressing public necessity" has more frequently been termed "compelling governmental interest," 1 see, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 299, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978) (opinion of Powell, J.). A majority of the Court has validated only two circumstances where "pressing public necessity" or a "compelling state interest" can possibly justify racial discrimination by state actors. First, the lesson of Korematsu is that national security constitutes a "pressing public necessity," though the government's use of race to advance that objective must be narrowly tailored. Second, the Court has recognized as a compelling state interest a government's effort to remedy [*352]  past discrimination for which it is responsible. Richmond v. J. A. Croson Co., 488 U.S. 469, 504, 102 L. Ed. 2d 854, 109 S. Ct. 706 (1989).

The contours of "pressing public necessity" can be further discerned from those interests the Court has rejected as bases for racial discrimination. For example, Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 90 L. Ed. 2d 260, 106 S. Ct. 1842 (1986), found unconstitutional a collective-bargaining agreement between a school board and a teachers' union that favored certain minority races. The school board defended the policy on the grounds that minority teachers provided "role models" for minority students and that a racially "diverse" faculty would improve the education of all students. See Brief for Respondents, O. T. 1984, No. 84-1340, pp 27-28; 476 US, at 315, 90 L Ed 2d 260, 106 S Ct 1842 (Stevens, J., dissenting) ("An integrated faculty will be able to provide benefits to the student body that could not be provided

40

by an all-white, or nearly all-white faculty"). Nevertheless, the Court found that the use of race violated the Equal Protection Clause, deeming both asserted state interests insufficiently compelling. Id., at 275-276, at 275-276, 90 L Ed 2d 260, 106 S Ct 1842 (plurality opinion); id., at 295, 90 L Ed 2d 260, 106 S Ct 1842 (White, J., concurring in judgment) ("None of the interests asserted by the [school  [***348]  board] . . . justify this racially discriminatory layoff policy"). 2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2 The Court's refusal to address Wygant's rejection of a state interest virtually indistinguishable from that presented by the Law School is perplexing. If the Court defers to the Law School's judgment that a racially mixed student body confers educational benefits to all, then why would the Wygant Court not defer to the school board's judgment with respect to the benefits a racially mixed faculty confers?

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

An even greater governmental interest involves the sensitive role of courts in child custody determinations. In Palmore v. Sidoti, 466 U.S. 429, 80 L. Ed. 2d 421, 104 S. Ct. 1879 (1984), the Court held that even the best interests of a child did not constitute a compelling state interest that would allow a state court to award custody to the father because the mother was in a mixed-race marriage. Id., at 433, 80 L Ed 2d 421, 104 S Ct 1879 [**2352]  (finding the interest "substantial" but  [*353]  holding the custody decision could not be based on the race of the mother's new husband).

Finally, the Court has rejected an interest in remedying general societal discrimination as a justification for race discrimination. See Wygant, supra, at 276, 90 L Ed 2d 260, 106 S Ct 1842 (plurality opinion); Croson, 488 U.S., at 496-498, 102 L Ed 2d 854, 109 S Ct 706 (plurality opinion); id., at 520-521, 102 L Ed 2d 854, 109 S Ct 706 (Scalia, J., concurring in judgment). "Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy" because a "court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future." Wygant, supra, at 276, 90 L Ed 2d 260, 106 S Ct 1842 (plurality opinion). But see Gratz v. Bollinger, ante,539 U.S. 244, 156 L Ed 2d 257, 123 S Ct 2411 (Ginsburg, J., dissenting).

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The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all. "Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation's understanding that such classifications ultimately have a destructive impact on the individual and our society."  [*354]  Adarand Constructors v. Pena, 515 U.S. 200, 240, 132 L Ed 2d 158, 115 S Ct 2097 (1995) (Thomas, J., concurring in part and concurring in judgment).

23. What is problematic to Justice Thomas about the alternative that the University of Michigan Law School chose not to take?

One must also consider the Law School's refusal to entertain changes to its current admissions system that  [***350]  might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce "academic selectivity," which would in turn "require the Law School to become a very different institution, and to sacrifice a core part of its educational mission." Brief for Respondents Bollinger et al. 33-36. In other words, the Law School seeks to improve marginally the education it offers  [*356]  without sacrificing too much of its exclusivity and elite status. 4

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4 The Law School believes both that the educational benefits of a racially engineered student body are large and that adjusting its overall admissions standards to achieve the same racial mix would require it to sacrifice its elite status. If the Law School is correct that the educational benefits of "diversity" are so great, then achieving them by altering admissions standards should not compromise its elite status. The Law School's reluctance to do this suggests that the educational benefits it alleges are not significant or do not exist at all.

24. On what basis does Justice Thomas argue that there is no compelling interest in public legal education in Michigan?

As the foregoing makes clear, Michigan has no compelling

42

interest in having a law school at all, much less an elite one. Still, even assuming that a State may, under appropriate circumstances, demonstrate a cognizable interest in having an elite law school, Michigan has failed to do so here.

This Court has limited the scope of equal protection review to interests and activities that occur within that State's jurisdiction. The Court held in Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 83 L. Ed. 208, 59 S. Ct. 232 (1938), that Missouri could not satisfy the demands of "separate but equal" by paying for legal training of blacks at neighboring state law schools, while maintaining a segregated law school within the State. The equal protection

"obligation is imposed by the Constitution upon the States severally as governmental entities--each responsible for its own laws establishing the rights and duties of persons within its borders. It [**2355]  is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system." Id., at 350, 83 L Ed 208, 59 S Ct 232 (emphasis added).

The Equal Protection Clause, as interpreted by the Court in Gaines, does not permit States to justify racial discrimination on the basis of what the rest of the Nation "may do or fail to do." The only interests that can satisfy the Equal Protection Clause's [*359] demands are those found within a State's jurisdiction.

The only cognizable state interests vindicated by operating a public law school are, therefore, the education of that State's citizens and the training  [***352]  of that State's lawyers. James Campbell's address at the opening of the Law Department at the University of Michigan on October 3, 1859, makes this clear:

"It not only concerns the State that every one should have all reasonable facilities for preparing himself for any honest position in life to which he may aspire, but it also concerns the community that the Law should be taught and understood . . . . There is not an office in the State in which serious legal inquiries may not frequently arise . . . . In all these matters, public and private rights are constantly involved and discussed, and ignorance of the Law has frequently led to results deplorable and alarming . . . . In the history of this State, in more than one instance, that ignorance has led to unlawful violence, and the shedding of innocent blood." E. Brown, Legal Education at Michigan 1859-1959, pp 404-406 (1959) (emphasis added).

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The Law School today, however, does precious little training of those attorneys who will serve the citizens of Michigan. In 2002, graduates of the University of Michigan Law School made up less than 6% of applicants to the Michigan bar, Michigan Lawyers Weekly, available at http://www.michiganlawyersweekly.com.ezp.lib.rochester.edu/barpassers0202.cfm,barpassers0702.cfm (all Internet materials as visited June 13, 2003, and available in Clerk of Court's case file), even though the Law School's graduates constitute nearly 30% of all law students graduating in Michigan. Ibid. Less than 16% of the Law School's graduating class elects to stay in Michigan after law school. ABA-LSAC Guide 427. Thus, while a mere 27% of the Law School's 2002 entering class are from Michigan, see University of  [*360] Michigan Law School Website, available at http://www.law.umich.edu.ezp.lib.rochester.edu/prospectivestudents/Admissions/index.htm, only half of these, it appears, will stay in Michigan.

In sum, the Law School trains few Michigan residents and overwhelmingly serves students, who, as lawyers, leave the State of Michigan. By contrast, Michigan's other public law school, Wayne State University Law School, sends 88% of its graduates on to serve the people of Michigan. ABA-LSAC Guide 775. It does not take a social scientist to conclude that it is precisely the Law School's status as an elite institution that causes it to be a way-station for the rest of the country's lawyers, rather than a training ground for those who will remain in Michigan. The Law School's decision to be an elite institution does little to advance the welfare of the people of Michigan or any cognizable interest of the State of Michigan.

Again, the fact that few States choose to maintain elite law schools raises a strong inference that there is nothing compelling about elite status. Arguably, only the public law schools of the University of Texas, the University of California, Berkeley (Boalt Hall), and the University of Virginia maintain the same reputation for excellence as the Law School. 5 Two of [**2356]  these States, Texas and California, are so large that they could reasonably be expected to provide  [***353]  elite legal training at a separate law school to students who will, in fact, stay in the State and

44

provide legal services to its citizens. And these two schools far outshine the Law School in producing in-state lawyers. The University of Texas, for example, sends over three-fourths of its graduates on to work in the State of Texas, vindicating the State's interest (compelling or not) in training Texas' lawyers. Id., at 691.

25. What does Justice Thomas suggest about the purported benefits that diversity (racial heterogeneity) will have on African-Americans?

The Court's deference to the Law School's conclusion that its racial experimentation leads to educational benefits will, if adhered to, have serious collateral consequences. The Court relies heavily on social science evidence to justify its deference. See ante, at 156 L Ed 2d, at 333-335; but see also Rothman, Lipset, & Nevitte, Racial Diversity Reconsidered, 151 Public Interest 25 (2003) (finding that the racial mix of a student body produced by racial discrimination of the type practiced by the Law School in fact hinders students' perception of academic quality). The Court never acknowledges, however, the growing evidence that racial (and other sorts) of heterogeneity actually impairs learning among black students. See, e.g., Flowers & Pascarella, Cognitive Effects of College Racial Composition on African American Students After 3 Years of College, 40 J. of College Student Development 669, 674 (1999) (concluding that black students experience superior cognitive development at Historically Black Colleges (HBCs) and that, even among blacks, "a substantial diversity moderates the cognitive effects of attending an HBC"); Allen, The Color of Success: African-American College Student  [*365]  Outcomes at Predominantly White and Historically Black Public Colleges and Universities, 62 Harv. Educ. Rev. 26, 35 (1992) (finding that black students attending HBCs report higher academic achievement than those attending predominantly white colleges).

At oral argument in Gratz v. Bollinger, ante,156 L Ed 2d 257, 123 S Ct 2411 , counsel for respondents stated that "most every single one of [the HBCs] do have diverse student bodies." Tr. of Oral Arg. in No. 02-516, p 52. What precisely counsel meant by "diverse" is indeterminate, but it is reported that in 2000 at Morehouse College, one of the most distinguished HBC's in the

45

Nation, only 0.1% of the student body was white, and only 0.2% was Hispanic. College Admissions Data Handbook 2002-2003, p 613 (43d ed. 2002) (hereinafter College Admissions Data Handbook). And at Mississippi  [***356]  Valley State University, a public HBC, only 1.1% of the freshman class in 2001 was white. Id., at 603. If there is a "critical mass" of whites at these institutions, then "critical mass" is indeed a very small proportion.

The majority grants deference to the Law School's "assessment that diversity will, in fact, yield educational benefits," ante, at 156 L Ed 2d, at 332. It follows, therefore, that an HBC's assessment that racial homogeneity will yield educational benefits would similarly be given deference. 7 An HBC's rejection of white applicants in order to maintain racial homogeneity seems permissible, therefore, under the majority's view of the Equal Protection Clause . But see United States v. Fordice, 505 U.S. 717, 748, 120 L. Ed. 2d 575, 112 S. Ct. 2727 (1992) (Thomas, J., concurring) ("Obviously, a State cannot maintain . . . traditions by closing particular institutions, historically white or historically black, to particular racial groups"). Contained within today's majority opinion is the seed of a new constitutional  [*366]  justification for a concept I thought long and rightly rejected--racial segregation.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -7 For example, North Carolina A&T State University, which is currently 5.4% white, College Admissions Data Handbook 643, could seek to reduce the representation of whites in order to gain additional educational benefits.

26. How does United States v. Virginia 518 U.S. 515 (1996) serve as a precedent for Justice Thomas? How does Justice Thomas apply it to this case?

Moreover one would think, in light of the Court's decision in United States v. Virginia, 518 U.S. 515, 135 L. Ed. 2d 735, 116 S. Ct. 2264 (1996), that before being given license to use racial discrimination, the Law School would be required to radically reshape its admissions process, even to the point of sacrificing some elements of its character. In Virginia, a majority of the Court, without a word about academic [**2359]  freedom, accepted the all-male Virginia Military Institute's (VMI) representation that some changes in its "adversative" method of

46

education would be required with the admission of women, id., at 540, 135 L Ed 2d 735, 116 S Ct 2264, but did not defer to VMI's judgment that these changes would be too great. Instead, the Court concluded that they were "manageable." Id., at 551, n. 19, 135 L Ed 2d 735, 116 S Ct 2264. That case involved sex discrimination, which is subjected to intermediate, not strict, scrutiny. Id., at 533, 135 L Ed 2d 735, 116 S Ct 2264; Craig v. Boren, 429 U.S. 190, 197, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976). So in Virginia, where the standard of review dictated that greater flexibility be granted to VMI's educational policies than the Law School deserves here, this Court gave no deference. Apparently where the status quo being defended is that of the elite establishment--here the Law School--rather than a less fashionable Southern military institution, the Court will defer without serious inquiry and without regard to the applicable legal standard.

C

Virginia is also notable for the fact that the Court relied on the "experience" of formerly single-sex institutions, such as the service academies, to conclude that admission of women to VMI would be "manageable." 518 U.S., at 544-545, 135 L Ed 2d 735, 116 S Ct 2264. Today, however, the majority ignores the "experience" of those institutions that have been  [***357]  forced to abandon explicit racial discrimination in admissions.

 [*367]  The sky has not fallen at Boalt Hall at the University of California, Berkeley, for example. Prior to Proposition 209's adoption of Cal. Const., Art. 1, § 31(a), which bars the State from "granting preferential treatment . . . on the basis of race . . . in the operation of . . . public education," 8 Boalt Hall enrolled 20 blacks and 28 Hispanics in its first-year class for 1996. In 2002, without deploying express racial discrimination in admissions, Boalt's entering class enrolled 14 blacks and 36 Hispanics. 9 University of California Law and Medical School Enrollments, available at http://www.ucop.edu.ezp.lib.rochester.edu/acadadv/datamgmt/lawmed/law-enrolls-eth2.html. Total underrepresented minority student enrollment at Boalt Hall now exceeds 1996 levels. Apparently the Law School cannot be counted on to be as resourceful. The Court is willfully blind to the very real experience

47

in California and elsewhere, which raises the inference that institutions with "reputation[s] for excellence," ante, at 156 L Ed 2d, at 332, 338, rivaling the Law School's have satisfied their sense of mission without resorting to prohibited racial discrimination.

27. What does Clarence Thomas say about the ability of law schools to find alternative ways of admission? How is Brown v. Board of Education now a precedent for his perspective?

In any event, there is nothing ancient, honorable, or constitutionally protected about "selective" admissions. The University of Michigan should be well aware that alternative methods have historically been used for the admission of students, for it brought to this country the German certificate system in the late-19th century. See H. Wechsler, The Qualified Student 16-39 (1977) (hereinafter Qualified Student). Under this system, a secondary school was certified by a university so that any graduate who completed the course offered by the school was offered admission to the university. The certification regime supplemented, and later virtually replaced (at least in the Midwest), the prior regime of rigorous  [*369]  subject-matter entrance examinations. Id., at 57-58. The facially race-neutral "percent plans" now used in Texas, California, and Florida, see ante, at 156 L Ed 2d, at 340, are in many ways the descendents of the certificate system.

Certification was replaced by selective admissions in the beginning of the 20th century, as universities sought to exercise more control over the composition of their student bodies. Since its inception, selective admissions has been the vehicle for racial, ethnic, and religious tinkering and experimentation by university administrators. The initial driving force for the relocation of the selective function from the high school to the universities was the same desire to select racial winners and losers that the Law School exhibits today. Columbia, Harvard, and others infamously determined that they had "too many" Jews, just as today the Law School argues it would have "too many" whites if it could not discriminate in its admissions process. See Qualified Student 155-168 (Columbia); H. Broun & G. Britt, Christians Only: A Study in Prejudice 53-54 (1931) (Harvard).

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Columbia employed intelligence tests precisely because Jewish applicants, who were predominantly immigrants, scored worse on such tests. Thus, Columbia could claim (falsely) that "'we have not eliminated boys because they were Jews and do not propose to do so. We have honestly attempted to eliminate the lowest grade of applicant [through the use of intelligence testing] and it turns out that a good many of the low grade men are New York City Jews.'" Letter from Herbert E. Hawkes, dean of Columbia College, to E. B. Wilson, June 16, 1922 (reprinted in Qualified Student 160-161). In other words, the tests were adopted with full knowledge of their disparate impact. Cf. DeFunis v. Odegaard, 416 U.S. 312, 335, 40 L. Ed. 2d 164, 94 S. Ct. 1704 (1974) (per curiam) (Douglas, J., dissenting).

Similarly no modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test (LSAT). Nevertheless, law schools  [*370]  continue to use the test and then attempt to "correct" for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body. The Law School's continued adherence to measures [**2361]  it knows produce racially skewed results is not entitled to deference by this Court. See Part IV, supra. The Law School itself admits that the test is imperfect, as it must, given that it regularly admits students who score at or below  [***359]  150 (the national median) on the test. See App. 156-203 (showing that, between 1995 and 2000, the Law School admitted 37 students--27 of whom were black; 31 of whom were "underrepresented minorities"--with LSAT scores of 150 or lower). And the Law School's amici cannot seem to agree on the fundamental question whether the test itself is useful. Compare Brief for Law School Admission Council as Amicus Curiae 12 ("LSAT scores . . . are an effective predictor of students' performance in law school") with Brief for Harvard Black Law Students Association et al. as Amici Curiae 27 ("Whether [the LSAT] measures objective merit . . . is certainly questionable").

Having decided to use the LSAT, the Law School must accept the constitutional burdens that come with this decision. The Law School may freely continue to employ the LSAT and other allegedly merit-based standards in whatever fashion it likes. What the Equal Protection Clause forbids, but the Court today

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allows, is the use of these standards hand-in-hand with racial discrimination. An infinite variety of admissions methods are available to the Law School. Considering all of the radical thinking that has historically occurred at this country's universities, the Law School's intractable approach toward admissions is striking.

The Court will not even deign to make the Law School try other methods, however, preferring instead to grant a 25-year license to violate the Constitution. And the same Court that had the courage to order the desegregation of all public schools in the South now fears, on the basis of platitudes  [*371]  rather than principle, to force the Law School to abandon a decidedly imperfect admissions regime that provides the basis for racial discrimination.

28. According to Justice Thomas, are there expectations that minorities admitted with the help of affirmative action perform as well as their peers in the classroom? How does actual performance in law school affect minorities themselves and in terms of group stereotypes?

The silence in this case is deafening to those of us who view higher education's purpose as imparting knowledge and skills to students, rather than a communal, rubber-stamp,  [*372]  credentialing process. The [**2362]  Law School is not looking for those students who, despite a lower LSAT score or undergraduate grade point average, will succeed in the study of law. The Law School seeks only a facade--it is sufficient that the class looks right, even if it does not perform right.

The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions. See T. Sowell, Race and Culture 176-177 (1994) ("Even if most minority students are able to meet the normal standards at the 'average' range of colleges and universities, the systematic mismatching of minority students begun at the top can mean that such students are generally overmatched throughout all levels of higher education"). Indeed, to cover the tracks of the aestheticists, this cruel farce of racial discrimination must continue--in selection for

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the Michigan Law Review, see University of Michigan Law School Student Handbook 2002-2003, pp 39-40 (noting the presence of a "diversity plan" for admission to the review), and in hiring at law firms and for judicial clerkships--until the "beneficiaries" are no longer tolerated. While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less "elite" law school for which they were better prepared. And the aestheticists will never address the real problems facing "underrepresented minorities," 11 instead continuing their social experiments on other people's children.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -11 For example, there is no recognition by the Law School in this case that even with their racial discrimination in place, black men are "underrepresented" at the Law School. See ABA-LSAC Guide 426 (reporting that the Law School has 46 black women and 28 black men). Why does the Law School not also discriminate in favor of black men over black women, given this underrepresentation? The answer is, again, that all the Law School cares about is its own image among know-it-all elites, not solving real problems like the crisis of black male underperformance.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

 [*373]  Beyond the harm the Law School's racial discrimination visits upon its test subjects, no social science has disproved the notion that this discrimination "engenders attitudes of superiority or, alternatively, provoke[s] resentment among those who believe that they have been wronged by the government's use of race." Adarand, 515 U.S., at 241, 132 L Ed 2d 158, 115 S Ct 2097 (Thomas, J., concurring in part and concurring in judgment). "These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are 'entitled' to preferences." Ibid.

It is uncontested that each year, the Law School admits a handful of blacks who would be admitted in the absence of racial discrimination. See Brief for Respondents Bollinger et al. 6. Who can differentiate between those who belong and those who do not? The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the

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"beneficiaries" of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma--because either racial discrimination did play a role, in which case the person may be deemed "otherwise unqualified," or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination. Is this what the Court means by "visibly open"? Ante, at 156 L Ed 2d, at 335.

29. According to Justice Thomas, what incentives has this Court’s decision created instead?

In recent years there has been virtually no change, for example, in the proportion of law school applicants with LSAT scores of 165 and higher who are black. 14 In 1993 blacks constituted 1.1% of law school applicants in that score range, though they represented 11.1% of all applicants. Law School Admission [***363]  Council, National Statistical Report (1994) (hereinafter LSAC Statistical Report). In 2000 the comparable numbers were 1.0% and 11.3%. LSAC Statistical Report (2001). No one can seriously contend, and the Court does not, that the racial gap in academic credentials will disappear in 25 years. Nor is the Court's holding that racial discrimination will be unconstitutional in 25 years made contingent on the gap closing in that time. 15

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -13 I agree with Justice Ginsburg that the Court's holding that racial discrimination in admissions will be illegal in 25 years is not based upon a "forecast," post, at 156 L Ed 2d, at 344 (concurring opinion). I do not agree with Justice Ginsburg's characterization of the Court's holding as an expression of "hope." Ibid.

14 I use a score of 165 as the benchmark here because the Law School feels it is the relevant score range for applicant consideration (absent race discrimination). See Brief for Respondents Bollinger et al. 5; App. to Pet. for Cert. 309a (showing that the median LSAT score for all accepted applicants from 1995-1998 was 168); id., at 310a-311a (showing the median LSAT score for accepted applicants was 167 for the years 1999 and 2000); University of Michigan Law School Website, available at http://www.law.umich.edu.ezp.lib.rochester.edu/prospectivestudents/Admissions/index.htm (showing that the median LSAT score for accepted applicants in 2002 was 166).

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15 The majority's non sequitur observation that since 1978 the number of blacks that have scored in these upper ranges on the LSAT has grown, ante, at 156 L Ed 2d, at 342, says nothing about current trends. First, black participation in the LSAT until the early 1990's lagged behind black representation in the general population. For instance, in 1984 only 7.3% of law school applicants were black, whereas in 2000 11.3% of law school applicants were black. See LSAC Statistical Reports (1984 and 2000). Today, however, unless blacks were to begin applying to law school in proportions greater than their representation in the general population, the growth in absolute numbers of high scoring blacks should be expected to plateau, and it has. In 1992, 63 black applicants to law school had LSAT scores above 165. In 2000, that number was 65. See LSAC Statistical Reports (1992 and 2000).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

 [*377]  Indeed, the very existence of racial discrimination of the type practiced by the Law School may impede the narrowing of the LSAT testing gap. An applicant's LSAT score can improve dramatically with preparation, but such preparation is a cost, and there must be sufficient benefits attached to an improved score to justify additional study. Whites scoring between 163 and 167 on the LSAT are routinely rejected by the Law School, and thus whites aspiring to admission at the Law School have every incentive to improve their score to levels above that range. See App. 199 (showing that in 2000, 209 out of 422 white applicants were rejected in this scoring range). Blacks, on the other hand, are nearly guaranteed admission if they score above 155. Id., at 198 (showing that 63 out of 77 black applicants are accepted with LSAT scores above 155). As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT once he is reasonably assured of achieving the requisite score. It is far from certain that the LSAT test-taker's behavior is responsive to the Law School's admissions policies. 16  [**2365]  Nevertheless, the possibility remains that this racial discriminatioxn will help fulfill the bigot's prophecy about black underperformance--just as it confirms the conspiracy theorist's belief that "institutional racism" is at fault for every racial disparity in our society.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -16 I use the LSAT as an example, but the same incentive structure is in place for any admissions criteria, including undergraduate grades, on which minorities are consistently admitted at thresholds significantly lower than whites.

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I therefore can understand the imposition of a 25-year time limit only as a holding that the deference the Court pays to the Law School's educational judgments and refusal to change its admissions policies will itself expire. At that point these policies will clearly have failed to "'eliminate  [*378]  the [perceived] need for any racial or ethnic'" discrimination because the academic credentials gap will still be there. Ante, at 156 L Ed 2d, at 341 (quoting Nathanson & Bartnika, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May-June 1977)). The Court defines this time limit in terms of narrow tailoring, [***364]  see ante, at 156 L Ed 2d, at 342, but I believe this arises from its refusal to define rigorously the broad state interest vindicated today. Cf. Part II, supra. With these observations, I join the last sentence of Part III of the opinion of the Court.* * *

For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 537, 559, 41 L. Ed. 256, 16 S. Ct. 1138 (1896) (Harlan, J., dissenting). It has been nearly 140 years since Frederick Douglass asked the intellectual ancestors of the Law School to "[d]o nothing with us!" and the Nation adopted the Fourteenth Amendment. Now we must wait another 25 years to see this principle of equality vindicated. I therefore respectfully dissent from the remainder of the Court's opinion and the judgment.

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